About the Author

Mike Butler

Mike Butler is an NZCPR Research Associate, a property investor and manager, author of The First Colonist -- The life and times of Samuel Deighton 1821-1900, a former contract writer for the New World Encyclopedia, and chief sub-editor of the Hawke’s Bay Herald-Tribune (1986-1999).

Seven reasons why the Waitangi Tribunal must go

A conspicuous absence in the Constitutional Advisory Panel’s “conversation” is debate about the role of the Waitangi Tribunal, a body that exerts disproportionate influence over public life. The Waitangi Tribunal is the “elephant in the room” – and its absence in the terms of reference that define the constitutional review implies that the Maori Party thinks it is doing a good job advocating for tribalist interests. This article gives seven reasons why the Waitangi Tribunal should be abolished.

Labour government Maori Affairs Minister Matiu Rata apparently did not grasp the constitutional implications of a permanent for-Maori-only complaint body when he introduced the Treaty of Waitangi Bill to parliament in 1974. Such a body that divides citizens along a Maori/non-Maori fault line conflicts with the assumed underlying simple principle that in a democracy like New Zealand all citizens must be treated the same under the law.

Rata said that the purpose of the Waitangi Tribunal Act was to provide for the observation and confirmation of the principles of the Treaty of Waitangi and to determine claims about certain matters that were inconsistent with those principles. He said that: “To the Maori people it (the treaty) is a charter that should protect their rights.[1]

The Leader of the Opposition, Robert Muldoon, spotted the problem after spending a couple of minutes reading the bill. “It must be emphasized that we are in fact one people”, he said, adding, “and the question can be asked whether special legislation of this type makes us one people or two peoples”.[2]

An example of the tribunal’s exclusive focus on Maori rights appeared in February 1985, when D. McMaster of Auckland asked the tribunal to end special privilege accorded to Maori people by virtue of their race, arguing that these privileges were at variance with the Treaty of Waitangi. Mr McMaster was asked whether he was a Maori. He replied that he was not a Maori, so was required to withdraw his claim because Section 6 of the Treaty of Waitangi Act 1975 says only Maori people can bring a claim.[3]

New Zealand’s race relations have deteriorated, especially since 1985, which was when the tribunal was empowered to investigate Maori claims back to 1840. (Using the tribal boundaries of 1840, decades of tribal warfare, as the basis for future claims is as absurd as taking the division of Europe as it was in 1940 as a basis for future just settlements.) That decision alone was responsible for the outpouring of claims, from three in 1987 to a total of 2034 by 2009, after the deadline for historical claims, and the payment of around $2-billion in financial redress.[4]

Michael Bassett, who was a Minister in the Lange Labour government which empowered the Waitangi Tribunal to investigate Maori claims back to 1840, and later belonged to that tribunal, wrote that: “There are few futuristic ideas that have lost their sheen as quickly as the notion that settlements of Maori grievances would improve New Zealand’s race relations.”[5]

2. Tribunal rewrites history

Once Maori became British subjects, according to the terms of the Treaty of Waitangi, Maori slaves were freed, cannibalism ended, and land disputes could be settled in court rather than on the battlefield. But post-1985 claimants needed to highlight the downside of colonisation, and if the facts did not fit a fictional claim, history needed to be re-written.

Some claimants had asked researchers to alter findings that were unhelpful to their cases, according to tribunal member Justice Eddie Durie in 1999, who also said that some tribes had tried to make payment of researchers conditional upon findings being altered.[6] Justice Durie said that there were complaints from researchers of instructions not to consult with certain persons, or only those approved by the claimant groups.

But the massaging of historical data did not stop with claimants. In 2000, when the Crown Forestry Rental Trust contracted mathematician Dr John Robinson to conduct demographic research, they expected a substantial report to document the link between land loss and population decline. Robinson did the research and found that there was no such link.

Robinson found that population decline was due to the 1800-1842 intertribal wars that reduced the Maori population by 40 percent, from 120,000 to 70,000, as well as ongoing female infanticide “daughter slaughter”. The Crown Forestry Rental Trust told him to rewrite his research or not get paid.[7]

History is twisted when details of the past are distorted to fit a present agenda. Historian Dr Giselle Byrnes, a former tribunal employee, says that tribunal reports “commit the ultimate faux pas of judging the past by the standards of the present.” In her 2004 book The Waitangi Tribunal and New Zealand History she called the tribunal’s efforts a “noble, but ultimately flawed experiment”.

On the tribunal’s debasing of historical analysis, Auckland University associate professor Elizabeth Rata said: “History is demoted from an academic discipline with its justifiying procedures and methods to self-interested ‘narratives’ that mix truth, half-truths, and opinion foregoing the scrutiny and criticism to which real historical inquiry must be subjected. The Waitangi Tribunal stands guilty of this as its interpretation of our past provides biculturalism’s creed.”[8]

Bassett, the author of 10 books on New Zealand history, took exception to the tribunal’s treatment of history. While working on the Tauranga report, he wrote a dissenting opinion taking issue with three of the general findings of the majority members.

He argued that the Crown was justified in taking military action against Tauranga Maori in the 1860s. He argued that individualising the tenure of Maori land there was not a treaty breach, and he argued that there was no failure on the part of the Crown in supervising the alienation of returned Maori land.[9]

Those arguments are relevant to all tribunal reports that involve military action, individualising the tenure of Maori land, and the alienation of returned Maori land.

The re-written history that deplores wicked white colonisers for stealing land from unwitting noble savages is posted on the Waitangi Tribunal website, and is written into school textbooks so that children and immigrants are brainwashed into believing that the Crown stole Maori land.

The assertion that the Crown stole Maori land is in fact a lie. Of New Zealand’s 26.8-million hectares, 1.47-million hectares remain in Maori freehold title, and 1.2-million hectares were confiscated as a result of the 1860s wars. The remaining 24.13-million hectares were bought and paid for.

3. The tribunal is biased

Bassett noted that by the early 1990s the Waitangi Tribunal’s appointed members gradually became advocates for Maori rather than independent assessors on the claims put before them.

Bias was evident in the unbalanced research done for the Ngai Tahu hearings. Christchurch researcher Denis Hampton wrote that the Crown, representing the taxpayers of New Zealand, had difficulty attracting historians to research the case while the well-financed claimants’ historians had expertise and were well prepared.[10]

The evidence of the Crown’s first witness in those hearings was withdrawn, Hampton wrote, adding that another Crown witness involved claimants in his research, and that at least two Crown witnesses had inappropriate expertise.

Crown witnesses failed to submit important evidence, mostly to do with allegations that Ngai Tahu members preferred to lease out rather than work their land, making themselves poor through idleness. Crown witnesses inexplicably were instructed to refrain from acting as advocates for the Crown! [11]

Waitangi Tribunal reports contain thousands of pages of history, but they are nevertheless carefully constructed persuasive arguments in which the history is woven around the tribunal’s flawed interpretation of the treaty, so-called treaty principles, and seven broadly defined grievances to justify the payment of compensation.

The shift of focus to functioning purely as a government-funded lobby group for “Maori” interests has hardened public feeling against the tribunal, to the extent that a Consumerlink/Colmar Brunton survey last year showed that of the 1031 people who responded, 68 percent favoured abolition.[12]

4. Tribunal activities undermine private property rights

Non-binding Waitangi Tribunal recommendations have had a devastating impact on the value of private property, to the extent that in 1993 Fisheries Minister Doug Kidd introduced amendment (4A) to the Treaty of Waitangi Act, which said “the tribunal shall not recommend . . . (a) the return to Maori ownership of any private land; or (b) the acquisition by the Crown of any private land.”

Te Roroa claimants (north of Dargaville) harassed landowners from 1987, and once the claim on private land became public knowledge, potential buyers vanished and land valuations nose-dived. [13]

When the Te Roroa Report 1992 recommended “that all the land that should have been set aside from the Crown purchases of the Maunganui, Waipoua, Waimamaku, and Wairau lands be returned to Te Roroa”[14], the owners of a string of farms either side of Maunganui Bluff were forced to sell to the Crown at prices below market rates. Some of those farmers were unable to recover financially.

And although the amendment was inserted on 20 August 1993, the forced sale of Maunganui Bluff was settled two years later.

The amendment has not stopped claimant demands for private land. Ngapuhi claimants are currently demanding that the government buy privately owned land in the Bay of Islands to give to the claimants. [15]

Once claimants set their sights on private land, property values and attractiveness to buyers decline. Once a “wahi tapu” (sacred area) is declared to exist on private land, the value goes down because land use is restricted.

Squatting on private land, as evidenced by Te Roroa, has been a strategy used frequently by claimants – the Nga Uri o Tupoto group occupied a warehouse in Kaikohe in 2009,[16] John and Wikatana Popata occupied a beachfront property at Taipa, near Mangonui, in the Far North, in January 2010, [17] and others were involved in an occupation near Kauri Cliffs in Matauri Bay.

5. The tribunal fails to meet public expectations

Matiu Rata introduced the Treaty of Waitangi Bill in 1974 to implement the Labour government’s election undertaking to declare February 6 a public holiday, known as New Zealand Day, to mark the signing of the Treaty of Waitangi; and to examine the practical means of legally acknowledging the principles (at that stage undefined) set out in the treaty

Rata promoted the tribunal as an avenue for Maori to air grievances rather than resorting to protest action. But protest has in fact increased despite 29 years of tribunal activity; with the annual Waitangi Day protest a regular occurrence. The size of protests has increased. The 1975 land march brought 5000 protestors to the steps of parliament, yet the 2004 foreshore and seabed hikoi brought 15,000 protestors there.

The tribunal was promoted as “providing an economic base for Maoridom”, as Prime Minister Jim Bolger said on November 21, 1997: “It will allow Ngai Tahu as a tribe to develop a workable economic base and become an economic force in the South Island and New Zealand”.

While Ngai Tahu’s $170-million did grow as property values increased, the “economic salvation for underprivileged Maori” argument is “disingenuous”, because if total financial redress (to all tribes) amounted to $3.5-billion, and if that amount was divided among an estimated total Maori population of 673,000, each person would receive only about $5200.

Settlements have proved useless as any source of assistance to those of Maori descent who are in genuine need. Alleviating poverty was often touted as a justification for settlements in the first place. Maori in poverty get nothing.

While the Waitangi Tribunal has existed, Maori protest has escalated, settlement proceeds have been captured by tribal elites, and Maori under-privilege appears to continue unabated.

6. Tribunal creates ‘gravy train’

Bassett saw that: “Hearings were awash with lawyers, most on legal aid, with the claims before us being funded by the Crown Forestry Rental Trust or the tribunal’s taxpayer funded resources. Virtually none of the costly process was paid for upfront by the claimants. They therefore had no incentive to be careful with taxpayers’ money, or even with the Maori money that many were eventually to receive from the Crown Forestry Rental Trust.

The government employs more than 120 to operate the Waitangi Tribunal and Office of Treaty Settlements. The treaty settlements office provides up to $50,000 for any one group towards pre-mandate phase activities, and up to $150,000 may be available for legal or specialist assistance. The Crown Forestry Rental Trust may also contribute.[18]

The scale of claimant funding became apparent in details released by Treaty Negotiations Minister Christopher Finlayson in March of this year after a request under the Official Information Act. Ngati Manawa received a total of $1.19-million in claimant funding from the Office of Treaty Settlements, and Ngati Porou $1.04-million. Further funding from the Crown Forestry Rental Trust was likely.

The 2008 “Treelords” settlement racked up $60-million in fees and expenses in the deal which transferred ownership of central North Island forests to eight tribes. Of this, an incredible $20-million went to tribal representatives to meet and negotiate among themselves. Part of the $57-million went to lawyers and consultants. Up to $10-million was paid in fees to finalise the deal.

The amounts involved prompted Maori rights lawyer Annette Sykes to say “The brown bureaucracy of the Maori world should be held accountable for the sort of money the Central North Island deal facilitators earned. . . . We’re not talking about money from the Crown here either. This is purely Crown Forestry Rental Trust money”.[19]

Legal aid provided $79-million since 2006 to help Maori groups seek compensation for alleged historical treaty breaches, according to Justice Department figures. Unlike civil or criminal cases, claimants can obtain legal aid regardless of their financial circumstances. Dame Margaret Bazley’s review of legal aid found that of the 75 most expensive cases in the 2008-09 year, 41 percent were for treaty claims.[20]

Negotiators are paid well, according to information released in response to detailed questioning by New Zealand First leader Winston Peters. The highest earner was Michael Dreaver, director of Auckland consultancy firm The Policy Shop, who earned $1.5-million for working on more than 20 settlements in the Auckland and Hauraki regions.[21]

“Rorting the Tribunal process has become the name of the game”, Bassett wrote. “A whole industry numbering somewhere around 1000 people (in 2008) gathered around new grievances that keep being dreamt up. Quite small family groups now call themselves tribes; personal disagreements with relatives get blown into major claims. And the taxpayer keeps paying up.”[22]

7. The tribunal is used to extract benefits for tribal interests

Rata said that the purpose of the Waitangi Tribunal was to “determine claims about certain matters that were inconsistent with those principles” but in 1974 no statement of what those treaty principles were existed.

Appeal Court president Justice Robin Cooke was the first to enumerate a summary of what he said were the principles in the 1987 New Zealand Maori Council v Attorney-General decision. Currently there are 13 DIFFERENT sets of treaty principles. Not only are the principles vague. They lack any basis in the words of the treaty and are merely the opinions of the person who wrote them.

The vagueness of the meaning of the numerous sets of treaty principles means that anything can be construed to be inconsistent with those principles, which has created an opportunity for the race hucksters to turn history and ongoing government policy into a cash cow for tribal interests.

Therefore, everything that happened since February 6, 1840, became a claimable offence, and every tribe could qualify for a treaty settlement irrespective of how fortunate or unfortunate their forebears’ experience was during the 19th century. Some claims, such as those for northern South Island tribes that did not own any land in 1840, extended back to events in the 1820s. Settlements related to pre-1840 events would be technically illegal since the cut-off date for inquiries was 1840.

And every resource that paid a dividend, such as forests, fisheries, minerals, the foreshore and seabed, fauna and flora, and the electromagnetic spectrum, could be claimed based on the argument that it was a taonga guaranteed to Maori by the treaty.

When “Maoridom”, in the 1980s, took claims related to State-owned enterprise land, and fisheries quota to the Waitangi Tribunal, they stumbled upon a strategy to twist the treaty to grab money and power.

Tribal opportunists will take a claim to the Waitangi Tribunal in the knowledge that they will get an extensive document that will report in their favour. Next step is the High Court where they will either succeed or go to the Appeal Court, and if unsuccessful there, on to the Supreme Court.

While the claim is going through the different legal levels, claimants will repeat their outrageous claim until it becomes embedded in the public conscious has a fact. The claim does not necessarily have to succeed because at any point a spineless government could cave in and grant a concession.

Once the Waitangi Tribunal was perceived as an advocacy body rather than a commission of inquiry, such a strategy appeared infallible. This strategy has been used successfully in relation to state-owned enterprises and fisheries, and is currently in use for water rights and electromagnetic spectrum.

Conclusion

Few question the Waitangi Tribunal. In fact, anyone who questions tribunal effectiveness or subjects it to critical analysis is called a racist. Attitudes to the tribunal are just as much a litmus test of political correctness as attitudes to the Treaty of Waitangi — and can mean, for those in a government job, the difference between promotion and “relegation”.

What would happen if there were no Waitangi Tribunal? The Maori Land Court deals with land issues and parliament deals with petitions as they arise. Most of the so-called historical issues had been addressed in this way and the tribunal has merely recycled those issues. A for-Maori-only body to deal with issues as they arise has created the division that Muldoon predicted.

The Waitangi Tribunal has created race fault line, it rewrites history, is biased, it undermines private property rights, fails to meet public expectations, it has created ‘gravy train’, and has become a tool to extract benefits for tribal interests. The tribunal was a bad idea at the wrong time. We have enough evidence for it to be abolished.